Use of Copyrighted materials by a non-profit educational foundation

I am a librarian at a university. I have been asked to weigh in on copyright issues for a project being developed jointly between the library and a professor who has incorporated his personal research archives as a non-profit educational foundation. This foundation already has its own webpage for displaying some of the materials from the professor’s archive, which consists of materials he’s collected from many different archives, published newspaper clippings, primary source documents and his own published works. I have expressed my concern about posting some of the published materials.

What I need help with understanding is technically these materials and the website are NOT part of the university or the library. In the future they may be donated to us.

So, from how I see it, am I essentially advising him on copyright based on his rights as a private non-profit organization wanting to display these items? (which are intended for research and education)… as oppose to if the library or the university was displaying the items.

I have lots of resources for copyright questions related to library or university use of copyrighted materials but does anyone know of any resources that can help guide me with this situation?

November 10, 2006 @ 6:50amksmith says:

I'm not sure I entirely understand your question, but insofar as I do, a lot of the answer will turn on whether the faculty member is the author of the articles or not. I can not tell if his archive is of his own work or that of others.

If the articles are written by him, he owns the copyright and is free to transfer it to his non-profit foundation. The foundation would then hold exactly what the professor held -- his exculsive rights for a term of his lifetime plus seventy years.

There are two possible situations where things would be different, however. First, the university might claim ownership of some of his work under the work made for hire doctrine. Such claims are very rare, and most university policies explicitly vest the ownership of faculty works in the faculty member. But where a university (as opposed to an outside party) has directly challenged faculty ownership, they have often prevailed. Such claims are very damaging to the relationship between faculty and the institution, and I hope this scenario doesn't apply.

The other possiblity is that the faculty member transferred his copyright to a publisher when he published the work. If this is the case, he will either have to be sure he reserved the right to post the material or he will need permission from the publisher.

If, on the other hand, he is posting work written by someone else, he will either need permission from that person or from the publisher to whom copyright was transferred, or else he will have to rely on fair use. The fair use analysis will look very similar to the analysis if a university wanted to post whole articles without the author's permission. The fact that the entity is an educational foundation might make the showing of an educational purpose a little more complex, but it should still be possible. The real problem here would be exposing the material to the whole world. Without permission, that could have a major impact on the market for the original and would make the fair use claim very difficult, in my opinion.

November 10, 2006 @ 7:56amjuju says:

Thank you for your response.

I apologize for not being more clear in asking my question. His archive consists of materials he’s collected from many different archives, published newspaper clippings, primary source documents and his own published works.

I was under the impression that to claim fair use, even if you are an educational institution, the materials must be used for classroom or curricular purposes. For instance, a group at a university wants to show movies at a movie festival. I was told that a university group could not claim fair use because it is not for a specific class. Wouldn’t the display of this professor’s archive be considered in a similar manner?

November 10, 2006 @ 8:35amksmith says:

Educational fair use is not necessarily limited to a classroom. The separate exception to copyright that allows screening of an entire film does contain a limitation to face to face teaching in a "classroom or similar place of instruction," but that is a different exception that is more narrow than fair use. If a screening of a film does not meet the requirements of the face to face teaching exception (section 110(1) of the Copyright Act), it might still fall under the fair use exception (section 107), although fair use would be unlikely if the screening were of the entire film.

Likewise, your professor might claim an educational purpose to his use even though it is not in a classroom. But that only accounts for one of the four fair use factors, and the other ones are not necessarily on his side. The public availablitity of the site will make impact on the market more significant and would probably count against fair use. Additionally, the amount of the material posted and the type of material being used will also have to be considered. It is possible that posting a single newspaper article would be fair use whereas posting an entire journal article would not be. The fact that it is a foundation doing the posting rather than a university does not rule out fair use, but the foundation, just like a university, would have to do a full fair use analysis, thinking about all four factors as they relate to each item.

November 10, 2006 @ 8:44amjuju says:

Thanks again for your reply. This helps clarify things. My experience is mostly with images.... when you post them you are posting the "whole." It gets more confusing when I try to figure out the requests for newspaper and journal articles within this context.

I rely on being able to send my questions to this forum and getting feedback, it's a great resource!